Opinion
COA22-235
12-20-2022
MARTIN E. ROCK, Petitioner, v. CITY OF DURHAM, Respondent
Martin E. Rock, Pro se, for Petitioner-Appellant. City of Durham, Sofia M. Hernandez and Kimberly M. Rehberg, for Respondent-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 21 September 2022.
Appeal by petitioner from order entered 1 April 2021 by Judge Michael J. O'Foghludha in Durham County Superior Court. Durham County, No. 19 CVS 4409
Martin E. Rock, Pro se, for Petitioner-Appellant.
City of Durham, Sofia M. Hernandez and Kimberly M. Rehberg, for Respondent-Appellee.
CARPENTER, Judge.
¶ 1 Martin E. Rock ("Petitioner") appeals pro se from an order (the "Order"), granting the City of Durham's ("Respondent") "Amended Motion to Dismiss" for lack of subject matter jurisdiction and lack of personal jurisdiction, pursuant to Rules 12(b)(1) and 12(b)(2) of the North Carolina Rules of Civil Procedure. On appeal, Petitioner argues the statute of limitations, which formed the trial court's basis for its dismissal, should have been tolled due to Respondent's failure to timely supply Petitioner with the record of the proceedings before the Durham Housing Appeals Board ("DHAB"). Petitioner asserts Respondent violated Chapter 160D and Chapter 132 of the North Carolina General Statutes by not providing Petitioner with the administrative record prior to the quasi-judicial hearing. Lastly, Petitioner contends Respondent should be estopped from asserting a statute of limitations argument on the ground Respondent caused Petitioner's non-compliance with the applicable statute. After careful review, we affirm the Order because the trial court lacked subject matter jurisdiction.
I. Factual and Procedural Background
¶ 2 On 24 June 2019, Respondent inspected Petitioner's property (the "Property") located within the city limits of Durham, North Carolina. Respondent issued a "Notice of Violation," finding Petitioner was not in compliance with Chapter 26 of the Durham City Code due to overgrowth and debris on the Property. The Notice of Violation was mailed to Petitioner the next day and required his compliance by 7 July 2019. On 3 July 2019, Petitioner appealed the citation to the DHAB.
¶ 3 On 16 October 2019, the DHAB held a quasi-judicial hearing to consider Petitioner's appeal from the Notice of Violation. Petitioner attended the DHAB hearing and presented evidence. On 31 October 2019, the DHAB filed its written order. After considering all the evidence and arguments presented at the hearing, the DHAB denied Petitioner's appeal, by a vote of four to one, after determining competent evidence supported Respondent's issuance of the Notice of Violation. The DHAB made findings of fact and concluded "the [N]otice of [V]iolation is valid and that the conditions existing on [Petitioner's Property constitute] a public nuisance." Finally, the DHAB advised in its decree that Petitioner could appeal the DHAB's decision "by filing a petition for review in the nature of certiorari with the clerk of Superior Court within 15 days of the decision of the [DHAB]," pursuant to N.C. Gen. Stat. § 160A-446(e).
N.C. Gen. Stat. § 160A-446(e) was amended in 2021. N.C. Gen. Stat. § 160A-446(e) (2019) was in effect at the time the DHAB entered its decision, although we note the amended version of the statute, N.C. Gen. Stat. § 160D-1208(c) (2021), and N.C. Gen. Stat. § 160A-446(e) (2019) contain identical language.
¶ 4 Petitioner made two written requests to Respondent for the administrative record before filing a notice of appeal with the Clerk of Durham County Superior Court from the decision of the DHAB on 21 November 2019. On 15 January 2021- over a year later-Petitioner filed a petition for writ of certiorari in the Durham County Superior Court. On the same day, Petitioner filed an amended petition for writ of certiorari to conform with the provisions of N.C. Gen. Stat. § 160D-1402, which took effect 1 January 2021.
¶ 5 In December 2019, Respondent filed a motion to dismiss, alleging Petitioner's claims should be dismissed for: (1) failure to comply with the statute of limitations; (2) failure to state a claim upon which relief could be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6); (3) failure to file a proper petition for writ of certiorari; and (4) lack of subject matter jurisdiction and personal jurisdiction. On 21 January 2021, Respondent filed the Amended Motion to Dismiss to add a fifth ground: mootness.
¶ 6 On 15 March 2021, the trial court conducted a hearing to consider Respondent's Amended Motion to Dismiss. At the conclusion of the hearing, the court orally announced it would grant Respondent's Amended Motion to Dismiss. On 1 April 2021, the trial court entered the written Order, in which it found the DHAB's order was issued on 31 October 2019, and that Petitioner filed a notice of appeal on 21 November 2019. The court further found Petitioner filed his petition for writ of certiorari beyond the fifteen-day limitation allowed for appeals of Housing Appeals Board decisions under N.C. Gen. Stat. § 160A-446(e). Accordingly, the court dismissed Petitioner's appeal for lack of subject matter jurisdiction and lack of personal jurisdiction, pursuant to Rules 12(b)(1) and 12(b)(2) of the North Carolina Rules of Civil Procedure. Petitioner gave timely written notice of appeal from the Order.
II. Issue
¶ 7 The sole issue before this Court is whether the Durham County Superior Court erred in granting Respondent's Amended Motion to Dismiss the action with prejudice, pursuant to Rules 12(b)(1) and 12(b)(2).
III. Jurisdiction
¶ 8 This Court has jurisdiction to address Petitioner's appeal pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).
IV. Violation of Non-Jurisdictional Rules
¶ 9 As an initial matter, we address Petitioner's violations of the North Carolina Rules of Appellate Procedure (the "Rules"). "It is well-established that the Appellate Rules are mandatory, and failure to comply with them subjects the appeal to dismissal." Meadows v. Iredell Cnty., 187 N.C.App. 785, 786, 653 S.E.2d 925, 927 (2007) (citation omitted), disc. rev. denied, 362 N.C. 236, 659 S.E.2d 735 (2008). There are three instances where "default under the appellate rules arises . . .: (1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements" of the Rules. Dogwood Dev. &Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008). Petitioner's Rule violations fall within the non-jurisdictional category. Violations of this nature typically do not lead to dismissal of the appeal except in the "most egregious instances," but it is within this Court's authority to impose sanctions if the violation rises to the level of a "substantial failure" or "gross violation." Id. at 199-200, 657 S.E.2d at 365-66; see also N.C. R. App. P. 25, 34.
¶ 10 We acknowledge Petitioner's status as a pro se appellant; however, this Court has made it clear the Rules apply to everyone. See Strauss v. Hunt, 140 N.C.App. 345, 348-49, 536 S.E.2d 636, 639 (2000) ("[E]ven pro se appellants must adhere strictly to the Rules of Appellate Procedure . . . or risk sanctions.").
¶ 11 Rule 26 governs the filing of documents with the appellate courts and service of those documents. Rule 26 requires, inter alia, the body of text in papers, including briefs, "be presented with double spacing between each line of text." N.C. R. App. P. 26(g)(1).
¶ 12 Rule 28(b)(3) commands that an appellant's brief contain "[a] concise statement of the procedural history of the case." N.C. R. App. P. 28(b)(3). This includes a description of "the nature of the case and [a summary of] the course of proceedings up to the taking of the appeal before the court. Id.
¶ 13 Rule 28(b)(5) requires "[a] full and complete statement of the facts." N.C. R. App. P. 28(b)(5). This statement should include "a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits ...." Id.
¶ 14 In Petitioner's brief to this Court, neither his Statement of Facts nor his Statement of the Case provide a "concise statement of the procedural history of the case." See N.C. R. App. P. 28(b)(3). Instead, Petitioner gives historical background of his neighborhood and mentions his "enthusiastic[ ] support" for the de-annexation of his residential community from the City of Durham. Additionally, Petitioner makes many unsupported, irrelevant accusations in his Statement of Facts, in violation of Rule 28(b)(5), including that Respondent's employees ransacked and stole items from his Property, and the employees "booby trapped" Petitioner's lawn mower "to violently explode," which he alleges could have "killed him or permanently maimed him for life." See N.C. R. App. P. 28(b)(5). In the Statement of Facts, Petitioner does not reference the material facts pertaining to his argument, such as the timing and nature of his appeal to Durham County Superior Court. See id. Moreover, Petitioner does not include a single citation to the record or transcript in his Statement of Facts. See id. Finally, Petitioner does not double space the body of text comprising his Statement of Facts. See N.C. R. App. P. 26(g)(1).
¶ 15 Although we conclude Petitioner violated Rules 26 and 28, we do not impose sanctions upon Petitioner but caution him, as well as attorneys and similarly situated litigants alike, that substantial violations of the Rules may subject an appeal to dismissal before this Court reaches the merits of the appeal. See Meadows, 187 N.C.App. at 786, 653 S.E.2d at 927.
V. Analysis
¶ 16 On appeal, Petitioner asserts the statute of limitations should not have served as the basis for Durham County Superior Court's dismissal of his appeal because he could not plead "with particularity" in his petition for writ of certiorari without the full record from the DHAB proceeding. Consequently, Petitioner contends, without citing any legal authority for his argument, the trial court's Order should be void because the statute of limitations was tolled due to Respondent's failure to timely supply Petitioner with the record of the DHAB proceeding. Petitioner also argues Respondent's failure to produce the record from the DHAB hearing bars Respondent from bringing a statute of limitations argument under the theory of equitable estoppel. Conversely, Respondent contends the fifteen-day statutory limitation was not tolled because the trial court lacked subject matter jurisdiction over the matter.
A. Subject Matter Jurisdiction
¶ 17 Next, we must consider whether the trial court had subject matter jurisdiction over the action. The trial court dismissed Petitioner's claim for lack of subject matter jurisdiction because Petitioner filed his petition for writ of certiorari outside of the fifteen-day deadline set by the governing statute. See N.C. Gen. Stat. § 160D-1208(c). In his first argument, Petitioner claims the fifteen-day statutory limit should not have started until he received the record from the proceedings below, which he alleges that he did not receive until 4 January 2021. We disagree.
¶ 18 This Court reviews a lower court's "dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) . . . de novo[,] and it may consider matters outside of the pleadings." Intersal, Inc. v. Hamilton, 373 N.C. 89, 98, 834 S.E.2d 404, 411 (2019) (citation omitted and emphasis added). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 12(h)(3) (2021). "When a defendant asserts the statute of limitations as an affirmative defense, the burden rests on the plaintiff to prove that his claims were timely filed." White v. Consol. Plan., Inc., 166 N.C.App. 283, 305, 603 S.E.2d 147, 162 (2004), disc. rev. denied, 359 N.C. 286, 610 S.E.2d 717 (2005).
¶ 19 Here, we consider whether the superior court had subject matter jurisdiction over a decision of the DHAB. North Carolina General Statute § 160D-1208 governs remedies in connection with housing appeals board decisions, including those arising from the DHAB. It provides in pertinent part: "Every decision of [a] housing appeals board is subject to review by proceedings in the nature of certiorari instituted within 15 days of the decision of the board, but not otherwise." N.C. Gen. Stat. § 160D-1208(c) (2021) (emphasis added).
¶ 20 Here, Petitioner first requested the record for the underlying DHAB proceeding on 29 October 2019. Respondent states multiple times in its brief that staff of Respondent provided Petitioner with "a google drive link to the complete record" on 30 October 2019. Nonetheless, Respondent's numerous citations to the record are erroneous and provide no proof Petitioner was given access to the record on 30 October 2019. We note the record does include a copy of an email exchange between Petitioner and a clerk of the DHAB, to which Respondent did not provide a citation. The email appears to contain a link to a google.com webpage; however, we are unable to discern whether the record was provided via this link. The body of text in this email reads: "Are you requesting a copy of the audio from the hearing?"
¶ 21 Respondent asserts Petitioner's requests came "two days before the expiration of the fifteen-day statute of limitation." We disagree. In this case, the transcript from the DHAB hearing was not included in the record, and there is no indication the DHAB announced its decision at the 16 October 2019 hearing. Thus, we conclude "the decision of the [DHAB]" was entered on 31 October 2019-the date its written order was filed. See N.C. Gen. Stat. § 160D-1208(c). Therefore, Petitioner had fifteen days from 31 October 2019 to file a petition for writ of certiorari with the superior court. See id. Petitioner filed an untimely notice of appeal on 21 November 2019, which was insufficient to preserve his right to appeal from the DHAB decision, given N.C. Gen. Stat. 160D-1208 specifically requires appeal proceedings to be initiated by certiorari. See id.
¶ 22 We now consider Petitioner's argument that this Court should excuse his untimely and inadequate notice of appeal to the superior court. Petitioner cites numerous subsections of Chapter 160D of the North Carolina General Statutes, as well as the North Carolina Public Records Law, to assert Respondent had "a statutory duty to provide the records from the [DHAB] proceedings prior to the quasi-judicial hearing." Yet, Petitioner does not cite any authority to support his assertions: (1) that the fifteen-day statute of limitation set out in N.C. Gen. Stat. § 160D-1208 should be tolled; (2) that Respondent was required to provide the complete administrative record within this fifteen-day deadline; or (3) that the proper remedy is to void the Order. Therefore, we consider these arguments abandoned. See N.C. R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned."). Further, we note the DHAB's order provided five findings of fact, which demonstrate the Notice of Violation was mailed to Petitioner and detailed the specific nature of the alleged housing code violations, and Petitioner attended the DHAB hearing and presented evidence. Petitioner clearly attempted to appeal the DHAB decision on 21 November 2019, and we are unpersuaded by his contention that his failure to timely file the necessary petition for writ of certiorari was due to his lack of the complete administrative record.
B. Equitable Estoppel
¶ 23 In his second argument, Petitioner contends Respondent should be equitably estopped from asserting a statute of limitations argument on the basis Respondent's non-compliance with the applicable statutes caused Petitioner's untimely petition filing.
¶ 24 The elements of equitable estoppel are:
(1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; and (3) knowledge, actual or constructive, of the real facts. The party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to his prejudice.White, 166 N.C.App. at 305, 603 S.E.2d at 162 (citations omitted). Nevertheless, "the question of subject matter jurisdiction may be raised at any point in the proceeding, and . . . such jurisdiction cannot be conferred by waiver, estoppel or consent." Sloop v. Friberg, 70 N.C.App. 690, 692-93, 320 S.E.2d 921, 923 (1984) (citations omitted and emphasis added); see also N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 12(h)(3).
¶ 25 Petitioner similarly relies on his assertion he needed access to the record of proceedings below to timely file his notice of appeal, as support for his equitable estoppel argument. Petitioner claims Respondent's alleged failure to produce the record constitutes "a concealment of material fact" and maintains "[Respondent] caused these delays to benefit from its own misconduct" without referencing any potential benefit to Respondent for its failure to produce the record. Petitioner claims he "had no knowledge and had no means of obtaining knowledge of the real facts without the record below"; thus, it took him over a year to file his amended petition for writ of certiorari in January 2021.
¶ 26 Although Petitioner claims he lacked knowledge of the "real facts," the record reveals the DHAB's order included findings of fact and conclusions of law warranting its decision to uphold the Notice of Violation, and Petitioner attended the DHAB hearing and presented evidence on his own behalf.
¶ 27 As discussed above, Petitioner filed his notice of appeal on 21 November 2019, over fifteen days after the DHAB filed its order on 31 October 2019. Thus, Petitioner failed to timely file writ with the Clerk of Durham County Superior Court. See N.C. Gen. Stat. § 160A-446(e); N.C. Gen. Stat. § 160D-1208(c) (2021). Respondent's alleged failure to produce the record from the DHAB proceeding neither explains nor excuses Petitioner's delay in filing his initial notice of appeal. We conclude the trial court did not err in dismissing Petitioner's claim for lack of subject matter jurisdiction. See Intersal, Inc., 373 N.C. at 98, 834 S.E.2d at 411; see also N.C. Gen. Stat. § 1A-1, Rule 12(h)(3).
VI. Conclusion
¶ 28 For the reasons discussed above, the trial court properly granted Respondent's Amended Motion to Dismiss the action. Accordingly, we affirm the Order. AFFIRMED.
Judges TYSON and WOOD concur.
Report per Rule 30(e).